Author E. Jean Carroll accused Trump of raping her in a department store in the mid-1990s. As President, Trump called her a liar. Carroll sued Trump for defamation. That case (Carroll 1) bogged down in the legal question of whether Trump had immunity because he was President at the time.
But Trump was not done. After leaving office he repeated his claims that she lied. Carroll sued again, and for sexual battery, invoking a change in New York law suspending the statute of limitations for such claims. Without the daunting issue of Presidential immunity to resolve that case went to trial. After hearing all the evidence, the jury ruled in Carroll’s favor, awarding her $5 million dollars in actual and punitive damages.
Subsequently, Trump tried to reduce the damages arguing the jury found he did not rape her (that he merely sexually assaulted her). That was technically correct under New York law which narrowly defines rape as requiring penetration by the penis. The jury ruled that the jury determined Trump forcibly inserted his fingers into Carroll’s vagina. The judge denied Trump’s request to reduce damages on grounds such “digital penetration” is rape as the term is commonly used and as used in other jurisdictions.
Being a glutton for punishment, Trump then raised the issue again. He sued Carroll for defamation. He claimed Carroll defamed him by accusing him of rape when a jury found he had not raped her. The judge dismissed Trump’s lawsuit on grounds that the jury did find Trump raped her as the term is commonly used and as defined by other jurisdictions.
Which brings us to the third determination that Trump raped Carroll. Remember that bogged down Carroll 1 case? The courts finally determined that Trump was not acting in his role as President when he made the comments about Carroll that he did. So the question of whether the prior statements Trump made as President about Carroll were defamatory had to be resolved. Today they were resolved in Carroll’s favor.
The court granted summary judgement to Carroll on “collateral estoppel” grounds. Collateral estoppel, also called “issue preclusion,” basically states that a fact question resolved by a prior judicial determination is precluded from re-litigation of the same question. In this case the fact questions for Carroll 1 were already resolved by the jury in Carroll 2.
Thus, the judge ruled that there are no material facts issues in dispute and that Carroll is entitled to summary judgement on the question of whether Trump defamed her. There will be a trial, but it will only be to determine damages, liability is a given.
Along the way, the judge again made clear that the jury found Trump raped E. Jean Carroll. As the above picture from the decision makes clear the judge stated:
“Mr. Trump in fact did ‘rape’ Ms. Carroll as that term is commonly used and understood in contexts outside of the New York Penal Law.”
Ms. Carroll is public figure and thus had to prove to the jury that Trump’s defamation was done with “actual malice.” The judge, in summary judgement for this case, said that question was also precluded from re-litigation. For the record, I diligently attempted to find a case where a public figure, having to prove actual malice, won a defamation case on summary judgement. I found none. That makes sense because the question of actual malice is normally a contested fact issue for a jury to decide. What made this case so different was that a jury had already decided that question, making it unnecessary for another jury to decide again what was already decided.
Incredibly there may be a fourth such determination by the judge. After Carroll 2 Trump repeated his defamatory comments about Carroll yet again. She has sued him, again. When Carroll 3 is considered the same legal finding of collateral estoppel/issue preclusion should apply again. Further, Carroll should be entitled to substantially higher damages. The whole point of punitive damages is to deter the conduct and Trump defamed Carroll again after the jury in Carroll 2 imposed punitive damages. In Carroll 3 she will undoubtedly argue that those punitive damages were not enough to deter the conduct so higher damages must be imposed so that Trump will get the message.
In the Republican Party, even being a rapist is not disqualifying. I suspect that many simply view it as being a manifestation of alpha maleness.
